Mitchem v. Sims

• Decision Date: 19 January 1982
• Docket Number: No. 8129SC456,8129SC456
• Citation: 55 N.C.App. 459,285 S.E.2d 839
• Parties: John Henry MITCHEM v. Linda Hicks SIMS and Arthur Thomas Sims.
• Court: North Carolina Court of Appeals

Page 839

285 S.E.2d 839

55 N.C.App. 459

John Henry MITCHEM v. Linda Hicks SIMS and Arthur Thomas Sims.

No. 8129SC456.

Court of Appeals of North Carolina.

Jan. 19, 1982.

Hamrick, Bowen, Nanney & Dalton by Louis W. Nanney, Jr., Rutherfordton, for plaintiff-appellee.

John B. Whitley and George C. Collie, Charlotte, for defendants-appellants.

VAUGHN, Judge.

Defendants' assignments of error arise from testimony by Dr. James L. Byers, a chiropractor who treated plaintiff for pain he was experiencing after a motor vehicle collision with defendant Linda Sims. Defendants contend that the court erred in allowing Dr. Byers to testify as to his opinion of plaintiff's alleged disability and its causation. Defendants further argue that Dr. Byers' testimony was insufficient evidence of permanent injury to warrant the admission into evidence of mortuary tables and the court's instruction on damages for permanent injury. We find no merit in defendants' contentions.

Defendants first except to the court permitting the following testimony:

"Q: Based upon your examination and treatment, what disability, if any, would you say John Mitchem will suffer from the injuries he related to you?

A: In my opinion he will have twenty to twenty-five percent disability in his shoulder and neck region."

Defendants object to the form of the question, arguing it is not stated in terms of reasonable chiropractic certainty. They also argue that no evidence of disability had been presented which could serve as a foundation for the question.

Chiropractors are recognized as experts in their field and, when properly qualified, allowed to testify as to diagnosis, prognosis, and disability. G.S. 90-157.2; Currence v. Hardin, 36 N.C.App. 130, 243 S.E.2d 172, aff'd., 296 N.C. 95, 249 S.E.2d 387 (1978). See also Annot., 52 A.L.R.2d 1384 (1957). Both parties to the present action stipulated that Dr. Byers was an expert in the field of chiropractic medicine. The court, therefore, properly permitted plaintiff's question concerning Dr. Byers' opinion of disability. The traditional form of such a question is phrased in terms of an "opinion satisfactory to yourself based upon reasonable medical certainty." We conclude that the present question asking for a chiropractor's expert opinion based upon his personal examination and treatment necessarily called for an opinion based upon reasonable medical certainty. Defendant's argument raises only semantic technicalities.

Furthermore, plaintiff had laid a proper foundation prior to asking the question. Plaintiff testified that he continues to have headaches and ringing in his ears. He has trouble sleeping and must take medication. Plaintiff testified he did not have these health problems prior to the accident. Dr. Byers testified that he examined plaintiff a month after the accident. He took x-rays showing misalignment of plaintiff's spine along his neck, rib cage section, and lower back. After one and a half months of treatment, the pain in plaintiff's lower back had subsided. At the end of 53 treatments, however, plaintiff still had limited motion and experienced pain in his shoulder and neck region. We conclude that the question of Dr. Byers was proper, and the assignment of error is overruled.

Defendants next except to the admission of a hypothetical question addressed to Dr. Byers:

"Q. Dr. Byers, if the jury should find from the evidence presented, and by its greater weight, that John Mitchem was involved in an automobile accident on November 15, 1978, that he was injured while in his truck when the truck was hit by the defendant--that the left side of his truck was hit by the left side of the defendant's car, and that his car traveled approximately twenty feet after the collision occurred and that he was knocked around in his car at the time of the collision, and that Mr. Mitchem had no problems with his neck and shoulder prior to November 15, 1978, do you have an opinion satisfactory to yourself as to whether all these ailments that he related to you could or might have been caused by this accident?"

Defendants argue that the question asks not for expert opinion but for mere speculation since it is premised on ailments as related by plaintiff to the doctor. There is no error, however, in allowing a medical expert to base his opinion in part on the medical history he obtains from the patient himself. "Statements made by a patient to his physician for the purposes of treatment... are 'inherently reliable'...." Booker v. Medical Center, 297 N.C. 458, 479, 256 S.E.2d 189, 202 (1979). This assignment of error is overruled. Defendants' arguments concerning Dr. Byers' response to the hypothetical question cannot be heard since defendants failed to make a timely motion to strike at trial or to note any exception in the record. See Young v. Glenn, 42 N.C.App. 15, 20, 255 S.E.2d 596, 599 (1979).

Defendant next argues that the court erred in admitting into evidence mortuary tables found in G.S. 8-46. We disagree.

It is well established that before evidence of life expectancy under G.S. 8-46 can be introduced, there must be evidence to a reasonable certainty of permanent injury. Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Teachey v. Woolard, 16 N.C.App. 249, 191 S.E.2d 903, cert. denied, 282 N.C. 430, 192 S.E.2d 840 (1972); McCoy v. Dowdy, 16 N.C.App. 242, 192 S.E.2d 81 (1972).

Where plaintiff suffers from an objective injury, a jury is capable of determining whether or not the injury is permanent in nature. Gillikin...